MARIAM Versus THE STATE
1. SAJJAD ALI SHAH, J . This Jail Appeal has been filed by the appellant named above against judgment dated 27‑11‑1976 of the learned Sessions edge, Tharparkar at Mirpur Khan, whereby she has been convicted for offence under section 302, P. P. C. and sentenced to life imprisonment.
2. Briefly prosecution story is that appellant Mst. Mariam, previously, was married to one Ilyas from whom she had a daughter by name Rani. About one and a half months prior to the incident, Mst. Mariam got married to Ahmed deceased due to the efforts of Mohammad Nekrnard of Kumbhar community. Deceased Abroad, at the time of his marriage with the appellant, was a widower, having a son by name Hussain Bux from his previous marring.‑, who lived with him in the same house. Mst. Rani, daughter of appellant, lived in another village about 35 miles away with her step‑brother. Mst. Mariam kept insisting on her husband, Ahmad deceased, that he should take her to meet her daughter or bring her to their house, which deceased avoided on one or other pretext. On the night of incident, in the late evening, appellant and deceased had a row on the same subject in the result whereof, deceased lost temper and gave a few slaps to the appellant in front of his son Hussain Bux complainant, who came to her rescue. Appellant resented this very much but kept quiet and after having their meals, deceased and appellant went to sleep on the same cot in the courtyard of their house, while complainant Hussain Bux and P. W. Haji, who is cousin of complainant, went to sleep on the pehi in the same courtyard at a short distance of about 7‑8 feet. It is stated that lantern was alight and hanging in the shed. At about 11 p.m. Mst. Mariam got up from the cot and picked up hatchet of the deceased, which was lying under the cot and with it inflicted injuries on her husband. The incident is stated to have been witnessed by P. Ws. Hussain Bux and Haji, who raised cries and ran to stop her. Cries attracted to the spot P. Ws. Ramzan, Mahmood and Fakir Muhammad from neighbouring houses. Mst. Mariam made extra judicial confession before them. Complainant Hussain Bux then went and apprised Nekmard Ghulam Kadir, who came to the spot and on his inquiry Mst. Mariam admitted her guilt. Thereafter, on the advice of Ghulam Kadir, complainant went to Nau Kote Police out post, which is at a distance of about 8 or 9 miles from the spot, and lodged F. I. R. at about 9 a. m. Thil incident took place in village Fakir Muhammad Notkani, Deh 319/B, Taluka Digri of District Tharparkar.
3. Muhammad Bachal, Head Constable, after registering report, went to the spot and found Ahmed lying dead in his house with two injuries on his neck and wrist. He prepared inquest report and sent the dead body to the hospital for post‑mortem examination. He took Mst. Mariam in custody and prepared mashirnama of vardat. P. W. Haji produced blood‑stained hatchet, which he seized and put into a sealed parcel. Blood‑stained earth and other articles of bedding were also secured. During further investigation by police, statements of witnesses were recorded. On 17‑4‑1974 judicial confession of Mst. Mariam was recorded by S. D. M., Mirpurkhas. After completion of investigation the case was challaned.
4. Post‑mortem examination revealed the following injuries:‑--
(1) One transverse incised wound 6' X x 2' extending from the right side towards the left side of the upper part of the neck, cutting the muscles, blood vessels of the right side of the neck, along with the fracture of the hyoid bone and trachea at upper part of the neck deep to the cervical vertebra with the collection of blood in the wound.
(2) Incised wound 3' X on left fore‑arm near the wrist joint with the compound fracture of ulna and radius bones.
5. According to the doctor the injuries were caused by sharp‑cutting weapon such as hatchet. Injury No. 1 was sufficient to cause death in the ordinary course of nature. Death was instantaneous. The time that elapsed between death and post‑mortem examination was 36 hours. Death was due to injury No. 1 which produced shock, haemorrhage and asphyxia.
6. Prosecution has examined P. W. 5, Hussain Bux complainant and P. W. 6 Haji as eye‑witnesses and P. W. 8 Mahmood and P. W. 9 Ramzan, who came to the spot on cries and saw Mst. Mariam being held by complainant. She made extra judicial confession before them as well as before P. W. 7 Ghulam Kadir Nekmard who was informed about the incident by complainant and came to the spot. Other witnesses examined are formal including Investigating Officers and S. D. M. who recorded confession.
7. Before the trial Court the appellant in her statement under section 342, Cr. P. C. denied all allegations of prosecution including her marriage with deceased Ahmad. About confession she stated that the same was given by her under coercion. She has further stated that after the death of her first husband Ilyas Kumbhar she married another person which was objected to by Mahmood Kumbhar, who forcibly put her in the house of Ahmed Kumbhar, where she was residing till divorce was obtained from her second husband Faizoo Khoso. She was happily staying with Ahmed and bore no grudge against him. Murder took place at night and was not seen by any body and in the morning the inmates of the house, including her, discovered the dead body. About her daughter Rani, she has stated that she had of her own will left her with her step‑brother and had got her married with the consent of members of her community after she was released on bail in this case.
8. Appellant Mst. Mariam in custody had appeared in the Court and we have heard her. With the assistance of the learned Advocate for the State we have examined the record of the case. We are firmly of the view that there is overwhelming incriminating evidence produced by the prosecution which connects her with the crime of murder. Firstly there are two eye witnesses, namely P. W. 5 Hussain Bux and P. W. 6 Hajr, who are inmates of the house. As such their presence at the spot at the time of incident cannot be called in question. According to the complainant, he saw Mst. Mariam get up from bed and inflict hatchet blows to her husband who was asleep. Complainant was at a distance of 12 feet as shown in the sketch of vardat. He could see the incident in the light of lantern which was alight, particularly so when he was only 12 feet away. He had raised cries and rushed to catch her. P. W. 6 Haji was sleeping with him at the same place also woke up. Complainant caught hold of appellant who had by then delivered two hatchet blows to the deceased. Meanwhile P. W. 8 Mahmood, whose house is at a distance of 110 feet and P. W. 9 Ramzan, whose house is at a distanco of 37 feet, as shown in the sketch, came to the spot and witnessed the scene of Mst. Mariam having been caught by complainant and Ahmad lying dead on the cot with hatchet injuries. She admitted before them having killed her husband because he slapped her and refused to take her to see her daughter. This preclude is also testified by the complainant. P. W. 7 Ghulam Kadir was brought by complainant from his house to the spot during the night before whom also she admitted her guilt. So the version of the eye‑witnesses further gets full support from the evidence of these three witnesses. All these five witnesses have no enmity or ill‑will against the appellant to implicate her falsely. Their evidence appears to be perfectly truthful. P. W. Mahmood and Ramzan fully corroborate Hussain Bux and Haji. There is nothing to doubt their statements and also that of Ghulam Kadir on the extra judicial confession of Mst. Mariam. Keeping in view the distance of 8 miles between police post and the spot and the fact that complainant went and brought Ghulam Kadir to the spot from a distance of 2 miles before going to the police post, the registration of F. I. R. at 9‑00 a.m. cannot be said to have been delayed.
9. Secondly post‑mortem report also says that in the small intestines of the deceased there was semi‑digested food, which tends to prove that incident took place round 11‑00 a.m. as stated by eye‑witnesses. The time given for death in post‑mortem report also Ends full support to the time of incident. The snatching away of hatchet, which was blood‑stained, from appellant by P. W. Haji while P. W. Hussain Bux grappled with her is also natural act and the same was produced to the police by P. W. Haji. This serves as a confirmatory circumstance.
10. This evidence is further supported by the factum of motive which is deposed by complainant that there was quarrel between appellant and her husband which culminated in slaps given by deceased to the appellant on the evening preceding incident which she resented very much and that prompted her to take this drastic action.
11. Lastly there is judicial confession of the appellant which though retracted in the trial Court appears to be voluntary as it was made on the following day of her arrest. All necessary precautions were taken and she bad admitted having killed Ahmed with hatchet blows because he did not take her to see her daughter. She has not admitted the fact of her marriage with the deceased but that has no bearing on the question of murder committed by her when she admits living together with Ahmed in his house. She has not given any convincing reasons that this confession was extracted from her under duress. In her statement under section 342, Cr. P. C. she has spoken about many extraneous matters which are not relevant with the facts of this case, hence no comment need to be made on that aspect. Prosecution case against the appellant stands proved beyond doubt and we do not find any justification to interfere with the conviction and sentence of the appellant.
12. The appeal is, therefore, dismissed.
13. S. Q, Appeal dismissed.